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59 L. Q. Rev. 327 (1943)
Mistake of Law

handle is hein.journals/lqr59 and id is 335 raw text is: MISTAKE OF LAW. T HE chief purpose of this article is to ascertain what is meant by mistake of law. It is a commonplace that, whereas mistake of fact is in some circumstances a ground for relieving the party who is mistaken from a legal obligation, mistake of law is in general no excuse. But when we ask what is the distinction between ' law' and ' fact' in this connexion, no exact answer is discoverable in the law reports. The reason for this is that the intrinsic difficulty of laying down any hard and fast line separating the two ideas is so great as to make the task a practical impossibility. 'There is not', said Jessel M.R. in Eaglesfield v. Marquis of Londonderry, ' a single fact connected with personal status that does not, more or less, involve a question of law. If you state that a man is the eldest son of a mariiage, you state a question of law, because you must know that there has been a valid marriage, and that that man was the first-born son after the marriage, or, in some countries, before. Therefore, to state it is not a representation of fact seems to arise from a confusion of ideas. It is not less a fact because that fact involves some knowledge or relation of law. There is hardly any fact which does not involve it. If you state that a man is in possession of an estate of £10,000 a year, the notion of possession is a legal notion, and involves knowledge of law; nor can any other fact in connection with property be stated which does not involve a knowledge of law.' The subsequent history of the case afforded a practical illustration of the difficulty of distinguishing a mistake of law from one of fact, for while Jessel M.R. held that in the circumstances of the case (the details of which do not concern us here) the mistake was one of fact, the Court of Appeal reversed his decision on the ground that it was a mistake of law. Bowen L.J., as great a master of the Common Law as Jessel was of Equity, put another example in West London Commercial Bank v. Kitson 2: ' Suppose I were to say I have a private Act of Parliament which gives me power to do so and so. Is not that an assertion that I have such an Act of Parliament ? It appears to me to be as much a representation of a matter of fact as if I had said I have a particular bound copy of Johnson's Dictionary.' It is as well to explain what we mean by 'mistake ' before examining its relation to fact and to law. It not only signifies a positive belief in the existence of something which in reality does not exist but it may also include sheer ignorance of something relevant to the transaction in hand. This may seem to be an extension of ' mistake' beyond its popular meaning, but it certainly appears in several of the reported cases where total inadvertence to the fact in question was treated as mistake in relation to it. The maxim, ignorantia iuris non excusat, which is of respectable antiquity in our law, is to some extent responsible for this wide meaning of mistake. It is necessary in investigating the distinction between mistake of law 1 (1875) 4 Ch. D. 693, 703. 2 (1884) 13 Q. B. D. 860, 863.

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